Exhibit 10.37
CONVERSION AGREEMENT
THIS CONVERSION AGREEMENT (this "Agreement") is dated as of this 1st
day of January 2001 between JANUS HOTELS AND RESORTS, INC., a Delaware
corporation with its principal place of business located at 0000 Xxxxxxxxx
Xxxx., X.X., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000-0000 (the "Company") and each
of XXXXX X. XXXXXX, ("Yeaggy"); XXXXX X. XXXX, ("Xxxx"); ELBE FINANCIAL GROUP,
LLC, a Nevada limited liability company ("Elbe") and XXXX HOSPITALITY INC. III,
an Ohio corporation ("BH").
RECITALS
WHEREAS, Yeaggy is the holder of 3,147.02 shares of the Company's Series B
Preferred Stock, par value $.01 per share ("Series B Preferred") (the "Yeaggy
Shares");
WHEREAS, Xxxx is the holder of 828 shares of Series B Preferred (the "Xxxx
Shares");
WHEREAS, Elbe is the holder of 8,613.06 shares of Series B Preferred (the
"Elbe Shares");
WHEREAS, BH is the holder of 1,100 shares of Series B Preferred (the "BH
Shares");
WHEREAS, the Yeaggy Shares, the Xxxx Shares, the Elbe Shares and the BH
Shares constitute approximately 81.53 % of the issued and outstanding shares of
Series B Preferred; and
WHEREAS, each of Yeaggy, Beck, Elbe and BH desire to convert each of the
Yeaggy Shares, the Xxxx Shares, the Elbe Shares and the BH Shares, respectively,
into a debt instrument in the form of the Promissory Notes attached hereto as
Exhibit A, in the case of Yeaggy (the "Yeaggy Note"), Exhibit B in the case of
Xxxx (the "Xxxx Note"); Exhibit C in the case of Elbe (the "Elbe Note") and
Exhibit D in the case of BH (the "BH Note").
NOW, THEREFORE, in consideration of the premises, and of the mutual
promises and agreements hereinafter set forth and of other good and valuable
consideration, the parties hereby agree as follows:
1. CONVERSION OF SERIES B PREFERRED. Subject to all of the terms, covenants
and conditions set forth in this Agreement, on the Closing Date (as defined in
Section 3.1) each of Yeaggy, Beck, Elbe and BH shall surrender, and the
Corporation shall redeem and cancel, the Yeaggy Shares, the Xxxx Shares, the
Elbe Shares and the BH Shares, as the case may be, in exchange for the Yeaggy
Note, the Xxxx Note, the Elbe Note and the BH Note, as the case may be.
2. REPRESENTATION AND WARRANTIES.
2.1 The Company represents and warrants as follows:
(a) Due Organization. The Company is a corporation duly
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organized under the laws of the State of Delaware and has all requisite power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
(b) Authorization. The execution, delivery and performance of
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this Agreement by the Company and the consummation of the transactions
contemplated hereby have been duly authorized and approved by the Board of
Directors of the Company and no other corporate action on the part of the
Company is necessary to authorize and approve this Agreement and the
transactions contemplated hereby.
(c) Execution; Delivery; Binding Effect. This Agreement has
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been duly executed and delivered by the Company and constitutes the legal, valid
and binding obligation of the Company and is enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium, fraudulent conveyance and similar laws affecting the rights and
remedies of creditors generally and the application of general principles of
equity.
2.2 Yeaggy represents and warrants as follows:
(a) Execution; Delivery; Binding Effect. This Agreement has
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been duly executed and delivered by Yeaggy and constitutes the legal, valid and
binding obligation of Yeaggy, and is enforceable against Yeaggy in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium,
fraudulent conveyance and similar laws affecting the rights and remedies of
creditors generally and the application of general principles of equity.
(b) Title to Yeaggy Shares. Yeaggy is the owner, beneficially
----------------------
and of record, of all of the Yeaggy Shares, free and clear of all liens,
encumbrances, security agreements, equities, options, claims, charges, and
restrictions. Yeaggy has full power to surrender the Yeaggy Shares to the
Company without obtaining the consent or approval of any other person, entity or
governmental or regulatory authority.
2.3 Xxxx represents and warrants as follows:
(a) Execution; Delivery; Binding Effect. This Agreement has
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been duly executed and delivered by Xxxx and constitutes the legal, valid and
binding obligation of Xxxx, and is enforceable against Xxxx in accordance with
its terms, subject to applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws affecting the rights and remedies of creditors
generally and the application of general principles of equity.
(b) Title to Xxxx Shares. Xxxx is the owner, beneficially and
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of record, of all of the Xxxx Shares, free and clear of all liens, encumbrances,
security agreements, equities, options, claims, charges, and restrictions. Xxxx
has full power to surrender the Xxxx Shares to the Company without obtaining the
consent or approval of any other person, entity or governmental or regulatory
authority.
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2.4 Elbe represents and warrants as follows:
(a) Due Organization. Elbe is a limited liability company duly
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organized under the laws of the State of Nevada and has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted.
(b) Authorization. The execution, delivery and performance of
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this Agreement by Elbe and the consummation of the transactions contemplated
hereby have been duly authorized and approved by the members/managers of Elbe
and no other company proceedings on the part of Elbe are necessary to authorize
and approve this Agreement and the transactions contemplated hereby.
(c) Execution; Delivery; Binding Effect. This Agreement has
-----------------------------------
been duly executed and delivered by Elbe and constitutes the legal, valid and
binding obligation of Elbe, and is enforceable against Elbe in accordance with
its terms, subject to applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws affecting the rights and remedies of creditors
generally and the application of general principles of equity.
(d) Title to Elbe Shares. Elbe is the owner, beneficially and
--------------------
of record, of all of the Elbe Shares, free and clear of all liens, encumbrances,
security agreements, equities, options, claims, charges, and restrictions. Elbe
has full power to surrender the Elbe Shares to the Company without obtaining the
consent or approval of any other person, entity or governmental or regulatory
authority.
2.5 BH represents and warrants as follows:
(a) Due Organization. BH is a corporation duly organized under
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the laws of the State of Ohio and has all requisite power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted.
(b) Authorization. The execution, delivery and performance of
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this Agreement by BH and the consummation of the transactions contemplated
hereby have been duly authorized and approved by the Board of Directors of BH
and no other corporate proceedings on the part of BH are necessary to authorize
and approve this Agreement and the transactions contemplated hereby.
(c) Execution; Delivery; Binding Effect. This Agreement has
-----------------------------------
been duly executed and delivered by BH and constitutes the legal, valid and
binding obligation of BH, and is enforceable against BH in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws affecting the rights and remedies of creditors
generally and the application of general principles of equity.
3
(d) Title to BH Shares. BH is the owner, beneficially and of
------------------
record, of all of the BH Shares, free and clear of all liens, encumbrances,
security agreements, equities, options, claims, charges, and restrictions. BH
has full power to surrender the BH Shares to the Company without obtaining the
consent or approval of any other person, entity or governmental or regulatory
authority.
2.6 Survival of Representations and Warranties. This Agreement and
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all representations, warranties and agreements made herein and pursuant hereto
shall survive the Closing and will be true and correct as of the date of Closing
as if made on that date.
3. THE CLOSING.
3.1 Time and Place. The surrender to the Company, and the redemption
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and cancellation by the Company, of the Yeaggy Shares, the Xxxx Shares, the Elbe
Shares and the BH Shares, as the case may be, in exchange for the Yeaggy Note,
the Xxxx Note, the Elbe Note and the BH Note, as the case may be (the "Closing")
shall occur as of January 1, 2001 at the principal offices of the Company, or at
such time and place as the parties may agree to in writing (the "Closing Date").
3.2 Obligations of Yeaggy, Beck, Elbe and BH at Closing. At the
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Closing, each of Yeaggy, Beck, Elbe and BH shall deliver and surrender to the
Company a certificate or certificates representing the Yeaggy Shares, the Xxxx
Shares, the Elbe Shares and the BH Shares, as the case may be, registered in the
name of Yeaggy, Beck, Elbe or BH, as the case may be.
3.3 The Company's Obligations at Closing. At the Closing, the
------------------------------------
Company shall:
(a) In the case of Yeaggy, redeem and cancel the Yeaggy Shares
and deliver to Yeaggy the Yeaggy Note, duly executed by the Company in favor of
Yeaggy;
(b) In the case of Xxxx, redeem and cancel the Xxxx Shares
and deliver to Xxxx the Xxxx Note, duly executed by the Company in favor of
Xxxx;
(c) In the case of Elbe, redeem and cancel the Elbe Shares
and deliver to Elbe the Elbe Note, duly executed by the Company in favor of
Elbe; and
(d) In the case of BH, redeem and cancel the BH Shares and
deliver to BH the BH Note, duly executed by the Company in favor of BH.
4. MISCELLANEOUS PROVISIONS.
4.1 Entire Agreement. This Agreement and the Exhibits hereto
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contain the entire understanding between the parties to this Agreement with
respect to the transactions contemplated hereby and may not be amended or
otherwise changed except in writing signed by the parties hereto. There are no
warranties, agreements or understandings, express or implied, except as
expressly set forth herein.
4
4.2 Notices. Any demands or notices hereunder shall be in
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writing and shall be delivered in person or sent via fax or by certified mail
addressed to the parties at their last known address on file with the Company.
4.3 Binding Effect. This Agreement shall be binding upon and shall
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inure to the benefit of the successors of each of the parties hereto. The terms
of this Agreement shall survive the Closing.
4.4 Enforcement. The parties agree that should it become necessary
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for either party to bring an action or cross-action against any other party to
resolve any controversy arising hereunder or enforce any of the terms hereof, or
for the breach of this Agreement, the prevailing party shall be entitled to
recover from the other party its reasonable attorneys' fees and expenses in
addition to costs of any such action.
4.5 Interpretation of Terms. This Agreement shall be governed by and
-----------------------
construed in accordance with the laws of the State of Delaware, without regard
to principles of conflicts of laws. The headings of the several paragraphs and
sections hereunder are inserted for convenience of reference only and are not
intended to be a part of or affect the meaning or interpretation of this
Agreement.
4.6 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which is deemed to be an original, but all of which
together constitute one Agreement. The signature of any party to any counterpart
is deemed to be a signature to, and may be appended to, any other counterpart.
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
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XXXXX X. XXXXXX
-----------------------------------------
XXXXX X. XXXX
ELBE FINANCIAL GROUP, LLC
By:
-----------------------------------------
Name:
Title:
XXXX HOSPITALITY INC. III
By:
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: President
JANUS HOTELS AND RESORTS, INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
6
Exhibit A
PROMISSORY NOTE
$3,147,020 January 1, 2001
THIS PROMISSORY NOTE (this "Note") is made by JANUS HOTELS AND RESORTS,
INC., a Delaware corporation with its principal place of business located at
0000 Xxxxxxxxx Xxxx., X.X., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000-0000 ("Payor")
in favor of XXXXX X. XXXXXX ("Payee"). This Note is being made simultaneously
and in conjunction with that certain Conversion Agreement of even date herewith
among Payor, Payee and others.
For value received, Payor promises to pay Payee the principal of THREE
MILLION ONE HUNDRED FORTY-SEVEN THOUSAND TWENTY DOLLARS ($3,147,020)
("Principal") with interest from the date hereof on the principal balance at the
rate of seven and one-half percent (7 1/2%) per annum compounded annually.
Interest shall be computed on the basis of the actual number of days elapsed
over a year of twelve thirty-day months and 360 days.
The Principal shall be payable in one (1) installment due in full on
December 31, 2011. Effective immediately, all accrued and unpaid interest on
this Note shall be payable in equal quarterly installments due on March 31, June
30, September 30 and December 31 of each year.
All amounts set forth herein are stated in United States Dollars. All
Principal and interest payments hereunder shall be paid in lawful money of the
United States of America.
Payor may prepay the indebtedness evidenced by this Note, in whole or
in part, without premium or penalty, at any time or from time to time (each such
prepayment or the applicable portion thereof, a "Prepayment"). Any prepayments
(including Prepayments) shall be applied to the outstanding Principal. Any
partial prepayment shall not postpone the due date of any Principal thereafter
due unless the parties shall otherwise agree in writing.
Each of the following events shall constitute an Event of Default (an
"Event of Default") under this Note:
(a) Failure of Payor to pay any amount due and payable under
this Note by no later than ten (10) days after the due date, whether at the time
scheduled for payment thereof or by reason of acceleration thereof or otherwise;
(b) Payor shall: (i) apply for or consent to the appointment
of a receiver, trustee or liquidator on any material part of its property; (ii)
admit in writing its inability to pay debts as they mature; (iii) make a general
assignment for the benefit of creditors; (iv) be adjudicated bankrupt or
insolvent; (v) file a voluntary petition in bankruptcy or a petition or an
answer seeking an arrangement with creditors or take advantage of any
bankruptcy, insolvency, readjustment of debt, dissolution or liquidation law, or
an answer admitting the material allegations of a petition filed against it in
any proceeding under any such law; or (vi) take any action for the purpose of
effectuating any of the foregoing; and
1
(c) Any order, judgment or decree shall be entered, without
Payor's application, approval or consent, by any court of competent
jurisdiction, approving a petition seeking reorganization of Payor or of all or
a substantial part of its assets, or appointing a receiver, custodian, trustee,
intervenor or liquidator therefor, or such a petition seeking reorganization or
liquidation shall be filed against Payor and such order, judgment or decree
shall continue unstayed and in effect for a period of sixty (60) days.
Upon the occurrence of an Event of Default hereunder, at the option of
Payee: (i) Payee may declare this Note immediately due and payable in full, as
to Principal, interest and any other sums payable hereunder, whereupon all such
sums shall be and become immediately due and payable in full; and (ii) Payee
shall be entitled to exercise forthwith against Payor any and all rights and
remedies that may otherwise be available to Payee hereunder and at law or in
equity.
This Note, and any payments due hereon, shall be subordinate to Senior
Debt, now or hereafter existing, of Payor (as hereinafter defined). "Senior
Debt" shall mean and include the Principal of premium and interest on all (a)
indebtedness of Payor to its creditors other than Payee under this Note and
other than to any stockholder, member, partner, manager, director, officer or
employee of Payor, whether or not secured and whether heretofore or hereafter
incurred (i) for borrowed money whether Payor is liable directly or indirectly
by guarantee, letter of credit or otherwise (exclusive of indebtedness for
borrowed money secured by a mortgage on real property and which is otherwise
non-recourse to the assets of the Company) or (ii) in connection with the
acquisition or lease by Payor of assets, for the payment of which Payor is
liable directly or indirectly by guarantee, letter of credit, obligation to
purchase or acquire or otherwise and (b) renewal, extensions or deferrals of any
such indebtedness. In the event of the distribution of assets of Payor upon
liquidation, dissolution, or reorganization of Payor, then principal, interest,
or premium on Senior Debt shall be paid before any payment is made to Payee. In
the event the Note is declared due and payable before its stated maturity, no
payment shall be made to Payee until principal, interest, and premium on Senior
Debt shall have been paid in full. By acceptance of this Note, Payee agrees to
enter into a subordination agreement on reasonable terms and conditions proposed
by a holder of Senior Debt.
No remedy conferred upon or reserved or available to Payee shall be
exclusive of any other remedy or remedies available to him, but each and every
remedy shall be cumulative and shall be in addition to every such remedy now or
hereafter existing at law or in equity. No delay or omission on the part of
Payee to exercise any right or power arising upon the occurrence of any Event of
Default shall impair any right or power of Payee or be construed to be a waiver
by Payee of such Event of Default. Any right or power of Payee may be exercised
from time to time and as often as may be deemed expedient by it.
Payor hereby: (i) waives demand, presentment for payment, notice of
intention to accelerate, notice of acceleration, protest, notice of protest, and
all other notices and diligence in collecting this Note; and (ii) agrees that it
will not be necessary for Payee, in order to enforce payment of this Note, to
first institute suit or exhaust rights against Payor.
2
Payor agrees to pay Payee's reasonable expenses to obtain, enforce or
liquidate payment or performance of any of Payor's obligations under this Note,
which expenses shall include reasonable attorneys' fees and expenses incurred by
Payee.
No waiver or modification of the terms of this Note shall be valid
unless in writing signed by each of Payee and Payor and then only to the extent
therein set forth.
This Note shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without regard to principles of
conflicts of laws.
This Note shall be binding upon the Payor and its respective successors
and assigns, and shall be enforceable by Payee, its successors, assigns or
subsequent holders of this Note.
IN WITNESS WHEREOF, Payor has executed and delivered this Note to be
effective as of the day and year first above-written.
JANUS HOTELS AND RESORTS, INC.
By: ______________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
3
Exhibit B
PROMISSORY NOTE
$828,000 January 1, 2001
THIS PROMISSORY NOTE (this "Note") is made by JANUS HOTELS AND RESORTS,
INC., a Delaware corporation with its principal place of business located at
0000 Xxxxxxxxx Xxxx., X.X., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000-0000 ("Payor")
in favor of XXXXX X. XXXX ("Payee"). This Note is being made simultaneously and
in conjunction with that certain Conversion Agreement of even date herewith
among Payor, Payee and others.
For value received, Payor promises to pay Payee the principal of EIGHT
HUNDRED TWENTY-EIGHT THOUSAND DOLLARS ($828,000) ("Principal") with interest
from the date hereof on the principal balance at the rate of seven and one-half
percent (7 1/2%) per annum compounded annually. Interest shall be computed on
the basis of the actual number of days elapsed over a year of twelve thirty-day
months and 360 days.
The Principal shall be payable in one (1) installment due in full on
December 31, 2011. Effective immediately, all accrued and unpaid interest on
this Note shall be payable in equal quarterly installments due on March 31, June
30, September 30 and December 31 of each year.
All amounts set forth herein are stated in United States Dollars. All
Principal and interest payments hereunder shall be paid in lawful money of the
United States of America.
Payor may prepay the indebtedness evidenced by this Note, in whole or
in part, without premium or penalty, at any time or from time to time (each such
prepayment or the applicable portion thereof, a "Prepayment"). Any prepayments
(including Prepayments) shall be applied to the outstanding Principal. Any
partial prepayment shall not postpone the due date of any Principal thereafter
due unless the parties shall otherwise agree in writing.
Each of the following events shall constitute an Event of Default (an
"Event of Default") under this Note:
(a) Failure of Payor to pay any amount due and payable under
this Note by no later than ten (10) days after the due date, whether at the time
scheduled for payment thereof or by reason of acceleration thereof or otherwise;
(b) Payor shall: (i) apply for or consent to the appointment
of a receiver, trustee or liquidator on any material part of its property; (ii)
admit in writing its inability to pay debts as they mature; (iii) make a general
assignment for the benefit of creditors; (iv) be adjudicated bankrupt or
insolvent; (v) file a voluntary petition in bankruptcy or a petition or an
answer seeking an arrangement with creditors or take advantage of any
bankruptcy, insolvency, readjustment of debt, dissolution or liquidation law, or
an answer admitting the material allegations of a petition filed against it in
any proceeding under any such law; or (vi) take any action for the purpose of
effectuating any of the foregoing; and
1
(c) Any order, judgment or decree shall be entered, without
Payor's application, approval or consent, by any court of competent
jurisdiction, approving a petition seeking reorganization of Payor or of all or
a substantial part of its assets, or appointing a receiver, custodian, trustee,
intervenor or liquidator therefor, or such a petition seeking reorganization or
liquidation shall be filed against Payor and such order, judgment or decree
shall continue unstayed and in effect for a period of sixty (60) days.
Upon the occurrence of an Event of Default hereunder, at the option of
Payee: (i) Payee may declare this Note immediately due and payable in full, as
to Principal, interest and any other sums payable hereunder, whereupon all such
sums shall be and become immediately due and payable in full; and (ii) Payee
shall be entitled to exercise forthwith against Payor any and all rights and
remedies that may otherwise be available to Payee hereunder and at law or in
equity.
This Note, and any payments due hereon, shall be subordinate to Senior
Debt, now or hereafter existing, of Payor (as hereinafter defined). "Senior
Debt" shall mean and include the Principal of premium and interest on all (a)
indebtedness of Payor to its creditors other than Payee under this Note and
other than to any stockholder, member, partner, manager, director, officer or
employee of Payor, whether or not secured and whether heretofore or hereafter
incurred (i) for borrowed money whether Payor is liable directly or indirectly
by guarantee, letter of credit or otherwise (exclusive of indebtedness for
borrowed money secured by a mortgage on real property and which is otherwise
non-recourse to the assets of the Company) or (ii) in connection with the
acquisition or lease by Payor of assets, for the payment of which Payor is
liable directly or indirectly by guarantee, letter of credit, obligation to
purchase or acquire or otherwise and (b) renewal, extensions or deferrals of any
such indebtedness. In the event of the distribution of assets of Payor upon
liquidation, dissolution, or reorganization of Payor, then principal, interest,
or premium on Senior Debt shall be paid before any payment is made to Payee. In
the event the Note is declared due and payable before its stated maturity, no
payment shall be made to Payee until principal, interest, and premium on Senior
Debt shall have been paid in full. By acceptance of this Note, Payee agrees to
enter into a subordination agreement on reasonable terms and conditions proposed
by a holder of Senior Debt.
No remedy conferred upon or reserved or available to Payee shall be
exclusive of any other remedy or remedies available to him, but each and every
remedy shall be cumulative and shall be in addition to every such remedy now or
hereafter existing at law or in equity. No delay or omission on the part of
Payee to exercise any right or power arising upon the occurrence of any Event of
Default shall impair any right or power of Payee or be construed to be a waiver
by Payee of such Event of Default. Any right or power of Payee may be exercised
from time to time and as often as may be deemed expedient by it.
Payor hereby: (i) waives demand, presentment for payment, notice of
intention to accelerate, notice of acceleration, protest, notice of protest, and
all other notices and diligence in collecting this Note; and (ii) agrees that it
will not be necessary for Payee, in order to enforce payment of this Note, to
first institute suit or exhaust rights against Payor.
2
Payor agrees to pay Payee's reasonable expenses to obtain, enforce or
liquidate payment or performance of any of Payor's obligations under this Note,
which expenses shall include reasonable attorneys' fees and expenses incurred by
Payee.
No waiver or modification of the terms of this Note shall be valid
unless in writing signed by each of Payee and Payor and then only to the extent
therein set forth.
This Note shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without regard to principles of
conflicts of laws.
This Note shall be binding upon the Payor and its respective successors
and assigns, and shall be enforceable by Payee, its successors, assigns or
subsequent holders of this Note.
IN WITNESS WHEREOF, Payor has executed and delivered this Note to be
effective as of the day and year first above-written.
JANUS HOTELS AND RESORTS, INC.
By: ______________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
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Exhibit C
PROMISSORY NOTE
$8,613,060 January 1, 2001
THIS PROMISSORY NOTE (this "Note") is made by JANUS HOTELS AND RESORTS,
INC., a Delaware corporation with its principal place of business located at
0000 Xxxxxxxxx Xxxx., X.X., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000-0000 ("Payor")
in favor of ELBE FINANCIAL GROUP, LLC ("Payee"). This Note is being made
simultaneously and in conjunction with that certain Conversion Agreement of even
date herewith among Payor, Payee and others.
For value received, Payor promises to pay Payee the principal of EIGHT
MILLION SIX HUNDRED THIRTEEN THOUSAND SIXTY DOLLARS ($8,613,060) ("Principal")
with interest from the date hereof on the principal balance at the rate of seven
and one-half percent (7 1/2%) per annum compounded annually. Interest shall be
computed on the basis of the actual number of days elapsed over a year of twelve
thirty-day months and 360 days.
The Principal shall be payable in one (1) installment due in full on
December 31, 2011. Effective immediately, all accrued and unpaid interest on
this Note shall be payable in equal quarterly installments due on March 31, June
30, September 30 and December 31 of each year.
All amounts set forth herein are stated in United States Dollars. All
Principal and interest payments hereunder shall be paid in lawful money of the
United States of America.
Payor may prepay the indebtedness evidenced by this Note, in whole or
in part, without premium or penalty, at any time or from time to time (each such
prepayment or the applicable portion thereof, a "Prepayment"). Any prepayments
(including Prepayments) shall be applied to the outstanding Principal. Any
partial prepayment shall not postpone the due date of any Principal thereafter
due unless the parties shall otherwise agree in writing.
Each of the following events shall constitute an Event of Default (an
"Event of Default") under this Note:
(a) Failure of Payor to pay any amount due and payable under
this Note by no later than ten (10) days after the due date, whether at the time
scheduled for payment thereof or by reason of acceleration thereof or otherwise;
(b) Payor shall: (i) apply for or consent to the appointment
of a receiver, trustee or liquidator on any material part of its property; (ii)
admit in writing its inability to pay debts as they mature; (iii) make a general
assignment for the benefit of creditors; (iv) be adjudicated bankrupt or
insolvent; (v) file a voluntary petition in bankruptcy or a petition or an
answer seeking an arrangement with creditors or take advantage of any
bankruptcy, insolvency, readjustment of debt, dissolution or liquidation law, or
an answer admitting the material allegations of a petition filed against it in
any proceeding under any such law; or (vi) take any action for the purpose of
effectuating any of the foregoing; and
1
(c) Any order, judgment or decree shall be entered, without
Payor's application, approval or consent, by any court of competent
jurisdiction, approving a petition seeking reorganization of Payor or of all or
a substantial part of its assets, or appointing a receiver, custodian, trustee,
intervenor or liquidator therefor, or such a petition seeking reorganization or
liquidation shall be filed against Payor and such order, judgment or decree
shall continue unstayed and in effect for a period of sixty (60) days.
Upon the occurrence of an Event of Default hereunder, at the option of
Payee: (i) Payee may declare this Note immediately due and payable in full, as
to Principal, interest and any other sums payable hereunder, whereupon all such
sums shall be and become immediately due and payable in full; and (ii) Payee
shall be entitled to exercise forthwith against Payor any and all rights and
remedies that may otherwise be available to Payee hereunder and at law or in
equity.
This Note, and any payments due hereon, shall be subordinate to Senior
Debt, now or hereafter existing, of Payor (as hereinafter defined). "Senior
Debt" shall mean and include the Principal of premium and interest on all (a)
indebtedness of Payor to its creditors other than Payee under this Note and
other than to any stockholder, member, partner, manager, director, officer or
employee of Payor, whether or not secured and whether heretofore or hereafter
incurred (i) for borrowed money whether Payor is liable directly or indirectly
by guarantee, letter of credit or otherwise (exclusive of indebtedness for
borrowed money secured by a mortgage on real property and which is otherwise
non-recourse to the assets of the Company) or (ii) in connection with the
acquisition or lease by Payor of assets, for the payment of which Payor is
liable directly or indirectly by guarantee, letter of credit, obligation to
purchase or acquire or otherwise and (b) renewal, extensions or deferrals of any
such indebtedness. In the event of the distribution of assets of Payor upon
liquidation, dissolution, or reorganization of Payor, then principal, interest,
or premium on Senior Debt shall be paid before any payment is made to Payee. In
the event the Note is declared due and payable before its stated maturity, no
payment shall be made to Payee until principal, interest, and premium on Senior
Debt shall have been paid in full. By acceptance of this Note, Payee agrees to
enter into a subordination agreement on reasonable terms and conditions proposed
by a holder of Senior Debt.
No remedy conferred upon or reserved or available to Payee shall be
exclusive of any other remedy or remedies available to him, but each and every
remedy shall be cumulative and shall be in addition to every such remedy now or
hereafter existing at law or in equity. No delay or omission on the part of
Payee to exercise any right or power arising upon the occurrence of any Event of
Default shall impair any right or power of Payee or be construed to be a waiver
by Payee of such Event of Default. Any right or power of Payee may be exercised
from time to time and as often as may be deemed expedient by it.
Payor hereby: (i) waives demand, presentment for payment, notice of
intention to accelerate, notice of acceleration, protest, notice of protest, and
all other notices and diligence in collecting this Note; and (ii) agrees that it
will not be necessary for Payee, in order to enforce payment of this Note, to
first institute suit or exhaust rights against Payor.
2
Payor agrees to pay Payee's reasonable expenses to obtain, enforce or
liquidate payment or performance of any of Payor's obligations under this Note,
which expenses shall include reasonable attorneys' fees and expenses incurred by
Payee.
No waiver or modification of the terms of this Note shall be valid
unless in writing signed by each of Payee and Payor and then only to the extent
therein set forth.
This Note shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without regard to principles of
conflicts of laws.
This Note shall be binding upon the Payor and its respective successors
and assigns, and shall be enforceable by Payee, its successors, assigns or
subsequent holders of this Note.
IN WITNESS WHEREOF, Payor has executed and delivered this Note to be
effective as of the day and year first above-written.
JANUS HOTELS AND RESORTS, INC.
By: ______________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
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Exhibit D
PROMISSORY NOTE
$1,100,000 January 1, 2001
THIS PROMISSORY NOTE (this "Note") is made by JANUS HOTELS AND RESORTS,
INC., a Delaware corporation with its principal place of business located at
0000 Xxxxxxxxx Xxxx., X.X., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000-0000 ("Payor")
in favor of XXXX HOSPITALITY INC. III ("Payee"). This Note is being made
simultaneously and in conjunction with that certain Conversion Agreement of even
date herewith among Payor, Payee and others.
For value received, Payor promises to pay Payee the principal of ONE
MILLION ONE HUNDRED THOUSAND DOLLARS ($1,100,000) ("Principal") with interest
from the date hereof on the principal balance at the rate of seven and one-half
percent (7 1/2%) per annum compounded annually. Interest shall be computed on
the basis of the actual number of days elapsed over a year of twelve thirty-day
months and 360 days.
The Principal shall be payable in one (1) installment due in full on
December 31, 2011. Effective immediately, all accrued and unpaid interest on
this Note shall be payable in equal quarterly installments due on March 31, June
30, September 30 and December 31 of each year.
All amounts set forth herein are stated in United States Dollars. All
Principal and interest payments hereunder shall be paid in lawful money of the
United States of America.
Payor may prepay the indebtedness evidenced by this Note, in whole or
in part, without premium or penalty, at any time or from time to time (each such
prepayment or the applicable portion thereof, a "Prepayment"). Any prepayments
(including Prepayments) shall be applied to the outstanding Principal. Any
partial prepayment shall not postpone the due date of any Principal thereafter
due unless the parties shall otherwise agree in writing.
Each of the following events shall constitute an Event of Default (an
"Event of Default") under this Note:
(a) Failure of Payor to pay any amount due and payable under
this Note by no later than ten (10) days after the due date, whether at the time
scheduled for payment thereof or by reason of acceleration thereof or otherwise;
(b) Payor shall: (i) apply for or consent to the appointment
of a receiver, trustee or liquidator on any material part of its property; (ii)
admit in writing its inability to pay debts as they mature; (iii) make a general
assignment for the benefit of creditors; (iv) be adjudicated bankrupt or
insolvent; (v) file a voluntary petition in bankruptcy or a petition or an
answer seeking an arrangement with creditors or take advantage of any
bankruptcy, insolvency, readjustment of debt, dissolution or liquidation law, or
an answer admitting the material allegations of a petition filed against it in
any proceeding under any such law; or (vi) take any action for the purpose of
effectuating any of the foregoing; and
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(c) Any order, judgment or decree shall be entered, without
Payor's application, approval or consent, by any court of competent
jurisdiction, approving a petition seeking reorganization of Payor or of all or
a substantial part of its assets, or appointing a receiver, custodian, trustee,
intervenor or liquidator therefor, or such a petition seeking reorganization or
liquidation shall be filed against Payor and such order, judgment or decree
shall continue unstayed and in effect for a period of sixty (60) days.
Upon the occurrence of an Event of Default hereunder, at the option of
Payee: (i) Payee may declare this Note immediately due and payable in full, as
to Principal, interest and any other sums payable hereunder, whereupon all such
sums shall be and become immediately due and payable in full; and (ii) Payee
shall be entitled to exercise forthwith against Payor any and all rights and
remedies that may otherwise be available to Payee hereunder and at law or in
equity.
This Note, and any payments due hereon, shall be subordinate to Senior
Debt, now or hereafter existing, of Payor (as hereinafter defined). "Senior
Debt" shall mean and include the Principal of premium and interest on all (a)
indebtedness of Payor to its creditors other than Payee under this Note and
other than to any stockholder, member, partner, manager, director, officer or
employee of Payor, whether or not secured and whether heretofore or hereafter
incurred (i) for borrowed money whether Payor is liable directly or indirectly
by guarantee, letter of credit or otherwise (exclusive of indebtedness for
borrowed money secured by a mortgage on real property and which is otherwise
non-recourse to the assets of the Company) or (ii) in connection with the
acquisition or lease by Payor of assets, for the payment of which Payor is
liable directly or indirectly by guarantee, letter of credit, obligation to
purchase or acquire or otherwise and (b) renewal, extensions or deferrals of any
such indebtedness. In the event of the distribution of assets of Payor upon
liquidation, dissolution, or reorganization of Payor, then principal, interest,
or premium on Senior Debt shall be paid before any payment is made to Payee. In
the event the Note is declared due and payable before its stated maturity, no
payment shall be made to Payee until principal, interest, and premium on Senior
Debt shall have been paid in full. By acceptance of this Note, Payee agrees to
enter into a subordination agreement on reasonable terms and conditions proposed
by a holder of Senior Debt.
No remedy conferred upon or reserved or available to Payee shall be
exclusive of any other remedy or remedies available to him, but each and every
remedy shall be cumulative and shall be in addition to every such remedy now or
hereafter existing at law or in equity. No delay or omission on the part of
Payee to exercise any right or power arising upon the occurrence of any Event of
Default shall impair any right or power of Payee or be construed to be a waiver
by Payee of such Event of Default. Any right or power of Payee may be exercised
from time to time and as often as may be deemed expedient by it.
Payor hereby: (i) waives demand, presentment for payment, notice of
intention to accelerate, notice of acceleration, protest, notice of protest, and
all other notices and diligence in collecting this Note; and (ii) agrees that it
will not be necessary for Payee, in order to enforce payment of this Note, to
first institute suit or exhaust rights against Payor.
2
Payor agrees to pay Payee's reasonable expenses to obtain, enforce or
liquidate payment or performance of any of Payor's obligations under this Note,
which expenses shall include reasonable attorneys' fees and expenses incurred by
Payee.
No waiver or modification of the terms of this Note shall be valid
unless in writing signed by each of Payee and Payor and then only to the extent
therein set forth.
This Note shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without regard to principles of
conflicts of laws.
This Note shall be binding upon the Payor and its respective successors
and assigns, and shall be enforceable by Payee, its successors, assigns or
subsequent holders of this Note.
IN WITNESS WHEREOF, Payor has executed and delivered this Note to be
effective as of the day and year first above-written.
JANUS HOTELS AND RESORTS, INC.
By: ______________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
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